Long-Sleepy Privacy Board Gets New Life After NSA Disclosures

By Charles S. Clark

August 5, 2013

The little-known Privacy and Civil Liberties Oversight Board, created in 2007 on a 9/11 Commission recommendation, was limping along for years with no appointees or staff leadership. All that changed with this summer’s revelations of domestic surveillance of Americans’ telephone activity by the National Security Agency.

The board -- an independent agency that consists of four part-time members and a full-time chair who advise the president and Congress on the balance between security and privacy -- this month will finally welcome its first executive director, attorney Sharon Bradford Franklin. That’s after it took more than two years for President Obama to nominate and for the Senate to approve the board members—Chairman David Medine was just confirmed in May.

On July 9, the board held a public hearing exploring the legal, technological and policy implications of the NSA’s surveillance conducted under Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act, or FISA.

And last week, nonprofit groups in the transparency advocacy community roped in the PCLOB in their push to pressure Congress to improve civil liberties and privacy protections in the once-secret data-monitoring projects disclosed in June by ex-contractor Edward Snowden.

On Aug. 2, the Project on Government Oversight, OpenTheGovernment.org and National Security Counselors sent the board a comment and a set of recommendations. “The revelations about Sections 215 and 702 raise serious questions about how to preserve privacy and fundamental civil liberties while also protecting this country from violent attack,” the groups wrote. “That we only learned of these questionable programs through whistleblowing disclosures further highlights the need to end secret law, the practice by which the laws passed by Congress are interpreted and applied behind closed doors by a small group of government officials and federal judges.”

Specifically, the advocates called on PCLOB to --

ensure that all government surveillance programs have a unique benefit;

assure that the rights and interests of the public are protected during proceedings of the secret Foreign Intelligence Surveillance Court, perhaps through creation of a PCLOB panel of attorneys;

ensure “accountability by clearly stating for how long metadata and other information collected by these surveillance programs can be retained in government databases;

and facilitate transparency by publicly releasing declassified versions of legal documents that substantively interpret the PATRIOT Act and FISA.

Just days earlier, a group of 60 transparency groups sent a similar letter to the Senate Judiciary Committee, asking for legislation reforming the two code sections to limit “warrantless surveillance” and to release opinions from the FISA court.